Before Prather, C.j., Smith And Waller, JJ.
The opinion of the court was delivered by: Waller, Justice
DATE OF JUDGMENT: 08/02/93
TRIAL JUDGE: HON. RICHARD T. WATSON
COURT FROM WHICH APPEALED: WILKINSON COUNTY CIRCUIT COURT
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: CONVICTION AFFIRMED, SENTENCE REVERSED AND REMADED - 10/15/98
MOTION FOR REHEARING FILED:
¶1. This case arises on appeal from the Circuit Court of Wilkinson County. On July 17, 1993, Sandra D. Sewell was found guilty of eight counts of voter fraud, having allegedly attested voter forgeries on absentee voter applications and ballot envelopes. Sandra Sewell's compiled sentence totaled eight years in the custody of the Mississippi Department of Corrections and $2,000 in fines.
¶2. After a careful review of the record and the briefs in this matter, we affirm the conviction of Sandra Sewell. However, finding that the trial Judge imposed a sentence upon Sandra Sewell beyond what is authorized by the statute, we reverse her sentence and remand her cause to the lower court for re-sentencing in accordance with the statute.
¶3. The instant case has its genesis in the 1991 elections in Wilkinson County, in which a large number of absentee ballots were cast, resulting in a lengthy investigation by the attorney general's office. Indeed, the Circuit Clerk, a veteran of more than twenty-four (24) years in office, testified that he "never had as many absentee ballots in the first twenty years as I had the...last four years."
¶4. In order to vote an absentee ballot by mail, the voter must obtain an "Application for Absentee Elector's Ballot" (ballot application) from the circuit clerk and return the completed application to the circuit clerk's office. An "official authorized to administer oaths" must attest to the ballot application by the elector, the attestation being the issue in Counts III through VIII. The clerk mails the ballot and a ballot envelope to the address indicated on the ballot application, usually within twenty-four hours of receiving the completed ballot application. Sometimes the ballot and ballot envelope are mailed along with the application to an address provided to the clerk. An "Electors Certificate" is on the back of the ballot envelope which must be signed by the voter and attested to, this attestation being the issue of counts I and II. When the ballot is returned to the clerk in the ballot envelope, the sealed envelope containing the ballot is attached to the ballot application and both are held until such time as they are placed into the precinct box and sent to the polling place. Any decision as to the sufficiency of the ballot application is made by the poll workers, not the clerk. The ballot envelope is opened at the precinct and the absentee ballot mixed with the regular ballots. Therefore, the absentee ballot is no longer associated with any particular voter. After the votes are tabulated on election day, the precinct boxes containing the ballots are returned to the clerk, and the boxes are sealed and stored. These forms and procedures are specified in Mississippi Code Annotated sections 23-15-627, 23-15-631, 3-25-715 and 23-15-635.
¶5. The primary election during this particular election cycle occurred on September 17, 1991, followed by the second primary (run-off) on October 8, 1991. The same ballot was used for both elections because there was insufficient time for new ballots to be printed. The specific race at issue in the instant case was the October 8, 1991, run-off contest between Calvin McFarland ("candidate McFarland") and Louis Gaulden, both candidates for supervisor of district one. Candidate McFarland, who was seeking re-election and was also convicted of voter fraud *fn1 , lost the election by 34 votes. According to testimony, candidate McFarland was actively engaged in the absentee balloting process, so much so that the deputy circuit clerk described the delivery of ballot applications by candidate McFarland as being "in bulk". Candidate McFarland was also the only person to deliver to the clerk's office ballot applications which had been attested by Sandra D. Sewell ("Sewell") as a notary public. *fn2
¶6. During the special November, 1992, term of the Circuit Court of Wilkinson County, the grand jury returned an indictment against Sewell, charging eight counts of voter fraud in violation of Mississippi Code Annotated section 23-15-753, as amended, and the indictment was filed on December 4,1992. *fn3 Counts I and II of the indictment charged that Sewell aided and abetted candidate McFarland by attesting to forged signatures on ballot envelopes. Counts III-VIII charged that Sewell aided and abetted candidate McFarland by attesting to forged signatures on ballot applications. All of the names in question represent registered voters in Wilkinson County supervisor district one and all of the documents comprising these eight counts were attested to by Sewell as a notary public. The initial trial in March of 1993, ended in mistrial after witness Betty McGraw, also indicted for voter fraud, died on the stand. This matter was tried again on July 15 through 17, 1993.
Testimony Pertaining to Counts I and II. Gordon McFarland and Minnie McFarland.
¶7. The State presented at trial Gordon McFarland, who happens to be the uncle of candidate McFarland, who testified that: in September and October of 1991, he was living in New Orleans; Minnie McFarland, his wife, was living in Chicago; neither of them ever lived at 3805 Houma Boulevard, Metairie, Louisiana, which was listed as their address on the ballot application and envelope; he had never applied for an absentee ballot; the signatures purporting to be that of "Gordon McFarland" on the ballot application and ballot envelope marked Exhibit S-1 are not his; and, he voted at the polls, not by absentee ballot.
¶8. Pam Schwartz testified for the State that she was the accounts leasing manager of Camelot Apartments, the address of which is 3805 Houma Boulevard, Metairie, Louisiana; and, that she was the custodian of the lease and payment records of this apartment complex. According to Schwartz, during the period between July 17, 1989, and July 31, 1992, Patricia McFarland (candidate McFarland's sister), leased and was the only occupant of apartment A-215.
¶9. Frank Hicks *fn4 ("Hicks"), the State's handwriting expert, testified that he had strong reason to believe that Sewell was the writer of the "Sandra D. Sewell" attestation signatures in Exhibits S-1 and S-2 *fn5 .
Testimony Pertaining to Count III. Lisa Brown
¶10. Leish "Lisa" Brown, a student residing in Jackson who had worked for candidate McFarland during the summer of 1991, testified that she did not sign the ballot application marked Exhibit S-3, nor did she authorize anyone else to do so. Further, she testified that she did not know Sewell and had never signed her name in the presence of Sewell. According to Brown, she received a ballot and signed the ballot envelope, which is part of Exhibit S-3, but she had never requested this ballot.
¶11. Hicks testified that he had made a positive identification that candidate McFarland was the writer of the"Lisa Brown" signature on the ballot application in Exhibit S-3. Further, he testified he had made a positive identification that Sewell was the writer of the "Sandra D. Sewell" attestation signature on this exhibit.
Testimony Pertaining to Count IV: Cassie L. Neyland
¶12. Milton Neyland testified for the State that he was the husband of Cassie L. Neyland for some 52 years and that she suffered from diabetes and poor circulation leading to the amputation of a leg. He stated that he was familiar with her handwriting. After examining the "Cassie L. Neyland" signature on the ballot application marked Exhibit S-4, he testified that it was not his wife's writing; it was not his handwriting; he did not know who wrote the signature; and, he did not know Sewell.
¶13. According to Hicks's testimony, he made a positive identification that candidate McFarland was the writer of the "Cassie L. Neyland" signature on Exhibit S-4. He also made a positive identification that Sewell was the writer of the "Sandra D. Sewell" attestation signature on Exhibit S-4.
Testimony Pertaining to Counts V and VI. S. P. Turner and Louise Turner.
¶14. Willie Turner, the son of Louise and S.P. Turner, testified that his parents were in an "old folks home" in Hammond, Louisiana, on September 19, 1991, the day that Louise Turner purportedly signed the ballot application marked Exhibit S-5, and the day S.P. Turner purportedly signed the ballot application marked Exhibit S-6. According to Willie, Louise Turner did not sign Exhibit S-5 because she could not write and used an "X" for her signature. Additionally, Willie also declared that S.P. Turner did not sign Exhibit S-6 because he could not write and likewise signed with an "X." On cross-examination, when Sewell's counsel insinuated that the mark with straight, crossed lines to the far left of the signature was S.J. Turner's "X," Willie maintained that "[t]hat's not my father's 'X' . . .[h]is hands tremble; he couldn't hardly make an 'X'." Willie testified that he recognized the voter's address on the application as his parents. However, he stated that the mailbox had been removed shortly after his parents had moved to the nursing home and that no mail was being sent to the Wilkinson County address.
¶15. Mike Wunnenberg, the administrator of Heritage Manor Nursing Home in Hammond, testified that S.P. and Louise Turner had been residents of the nursing home since May 23, 1991, as confirmed by Exhibits S-9 and S-10, which were nursing home records for the month of September, 1991. ¶16. Hicks testified that he had made a positive identification that candidate McFarland was the writer of the "Louise Turner" signature on Exhibit S-5. Further, he stated that he had made a positive identification that Sewell was the writer of the "Sandra D. Sewell" attestation signature on Exhibit S-5. Additionally, Hicks maintained that he had strong reason to believe that candidate McFarland was the writer of the "S.P. Turner" signature on Exhibit S-6. Hicks also declared that he had made a positive identification that Sewell was the writer of the "Sandra D. Sewell" attestation signature on Exhibit S-6.
Testimony Pertaining to Count VII. Eric R. Stewart.
¶17. Eric Reshon Stewart, who had once lived on the same street as candidate McFarland, testified, after examining the "Eric R. Stewart" signature on the ballot application marked Exhibit S-7, that he did not sign the ballot application; he did not authorize anyone else to sign it; he does not know Sewell; and, he has never signed any document in her presence nor asked her to attest to any such document. He testified that the address on the application was his address in September, 1991, except that "P.O. Box 364" was not part of his address. ¶18. Hicks testified that he had a strong reason to believe that candidate McFarland was the writer of the "Eric R. Stewart" ...